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No. 14-3443
IN THE APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
ACF LEASING, LLC, ACF SERVICES, LLC, )
and GENERATION CLEAN FUELS, LLC, ) Appeal from the Circuit Court of
) Cook County, IIlinois
Plaintiffs-Appellants, ) County Department, Law Division
)
VS. ) Circuit Court No. 14 L 2768
)
GREEN BAY RENEWABLE ENERGY, LLC, ) Honorable Margaret Ann Brennan,
ONEIDA SEVEN GENERATIONS ) Judge Presiding
CORPORATION and THE ONEIDA TRIBE )
OF INDIANS OF WISCONSIN, )
)
Defendants-Appellees. )
APPENDIX
Document Page
Order from Cook County Circuit Court Dated 10/8/14 Al
Order from Cook County Circuit Court Dated 10/27/14 A2-3
Notice of Appeal filed on 11/7/14 A4-9
Table of Contents of Record on Appeal A10-19
Brief of Plaintiffs-Appellants, Oneida Seven Generations A20-35
Corporation, et al. v. City of Breen Bay, 2013 WL 2731350
(May 28, 2013)
Ane"
IN THE CIRCUIT COURT OF COOK COUNTY
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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION
ACF LEASING, LLC; ACF SERVICES,
LLC; and GENERATION CLEAN
FUELS, LLC,
Plaintiffs,
v. Case No. 2014 L 2768
Nene Ne Ne eee” Ne”
GREEN BAY RENEWABLE ENERGY,
LLC; ONEIDA SEVEN GENERATIONS)
CORPORATION; and THE ONEIDA _ )
TRIBE OF INDIANS OF WISCONSIN, )
Defendants.
ORDER
The cause comes before the Court on defendants Oneida Seven Generations Corporation
and The Oneida Tribe Of Indians Of Wisconsin’s Motion for Illinois Supreme Court Rule 304(a)
Finding, the Court being fully informed, ORDERS AS FOLLOWS:
L. Plaintiffs, ACF Leasing, LLC, ACF Services, LLC, and Generation Clean Fuels,
LLC, named three defendants in this action, Green Bay Renewable Energy, LLC, Oneida Seven
Generations Corporation, and The Oneida Tribe of Indians of Wisconsin.
2. On October 8, 2014, the Court entered an order granting defendants Oneida Seven
Generations Corporation and The Oneida Tribe of Indians of Wisconsin’s motion to dismiss for
lack of subject matter jurisdiction, dismissing those defendants from this action (the ‘“‘Order’).
Also on October 8, 2014, the Court denied, in part, defendant Green Bay Renewable Energy,
LLC's motion to dismiss. As a result, claims against defendant Green Bay Renewable Energy,
LLC remain pending.
3. (inois Supreme Court Rule 304(a) provides that “[i]f multiple parties or multiple
claims for relief are involved in an action, an appeal may be taken from the final judgment as to
one or more but fewer than all of the parties or claims only if the trial court has made an express
02097-0001 #3182842
AZ
written finding that there is no just reason for delaying either enforcement or appeal or both.” II.
Sup, Ct. Rule 304(a).
4, An order is “final” for Rule 304(a) purposes if it provides for the “ultimate
disposition of an individual claim entered in the course of a multiple claims action.” Geler v.
Hamer Enterprises, Inc., 226 ILApp.3d 372, 379 (1™ Dist. 1992) (citations and quotations
omitted), see also Mar Cement, Inc. v. Diorio Builders, Inc., 153 Tl App.3d 798, 801 (2d Dist.
1987) (Rule 304(a) “applies to orders that are final in character although entered in
comprehensive proceedings that include other matters”) (citation and quotation omitted). Here,
the Order is “final” for Rule 304(a) purposes because it dismisses Oneida Seven Generations
Corporation and The Oneida Tribe of Indians of Wisconsin on subject matter jurisdiction
grounds, dismissing them as defendants in this multiple claim and multiple party action,
5. In the exercise of its discretion pursuant to Illinois Supreme Court Rule 304(a),
the Court finds that there is no Just reason for delaying appeal from its October 8, 2014 Order
granting defendants Oneida Seven Generations Corporation and The Oneida Tribe of Indians of
Wisconsin’s Motion to Dismiss for Lack of Subject Matter Jurisdiction, and the Court hereby
certifies the Order for immediate appeal.
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Circuit Court Judge
Prepared by:
Thomas J. Verticchto, Esq.
Swanson, Martin & Bell, LLP
330 North Wabash Avenue, Suite 3300
Chicago, Hlinois 60611
(312)321-9100
(312) 321-0990 — Fax
Firm No, 29558
Attorneys for Defendants
A3
No.:
chy Oy
APPEAL TO THE FIRST DISTRICT OF THE APPELLATE COURT OF ILLINGHS 4; mn
FROM THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS | ae
COUNTY DEPARTMENT, LAW DIVISION 0! 80 oe Sr
i pe
ACF LEASING, LLC, ACF SERVICES, LLC,
and GENERATION CLEAN FUELS, LLC,
Plaintiffs-Appellants,
Vs. No. 1412768
GREEN BAY RENEWABLE ENERGY, LLC,
ONEIDA SEVEN GENERATIONS
CORPORATION and THE ONEIDA TRIBE
OF INDIANS OF WISCONSIN,
Honorable Margaret Ann Brennan,
j
)
)
)
)
)
)
)
) Judge Presiding
)
)
)
)
Defendants-Appellees
NOTICE OF FILING
To: All Attorneys of Record ~ Service List Attached
PLEASE TAKE NOTICE that on the 7" day of November, 2014, we shall file with the
Clerk of the Appellate Court for the First Judicial District of Iilinois, Plaintiffs/Appellants’
Notice of Appeal, a copy of which is attached hereto and served upon you herewith
Respectfully submitted,
\ QUAN
Gerald M. Dombrowski
Heather D. Erickson
SANCHEZ DANIELS & HOFFMAN LLP
333 West Wacker Drive, Suite 500
Chicago, Ulinois 60606
(312) 641-1555
Attorneys for Plaintiffs-Appellants
ACF LEASING, LLC, ACF SERVICES, LLC,
& GENERATION CLEAN FUELS, LLC
A4
PROOF OF SERVICE
The undersigned certifies, under penalties as provided by law pursuant to 735 ILCS 5/1-
109, that she served this Notice by mailing a copy to the attorneys listed on the attached service
list by depositing a copy of same in the U.S. Mail at 333 West Wacker Drive, Chicago, Illinois
60606, at or before 5:00 p.m. on November 7, 2014, with proper postage prepaid, and that this
statement as set forth is trug and correct.
(~~ fh
Ars Dui
April’D, Burrell
Signed and Certified:
BALA TAG HIST GHOST APPEAL ANU PICESENGF MUA UOTE 14 dow:
AS
No.:
APPEAL TO THE FIRST DISTRICT OF THE APPELLATE COURT OF ILLINOIS
FROM THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION
ACF LEASING, LLC, ACF SERVICES, LLC, }
and GENERATION CLEAN FUELS, LLC, j
) S &
Plaintiffs-Appellants, } Z SE Se ay
) a { @& EQS
VS. No.: 14 L 2768 A = y f a
7 NS
GREEN BAY RENEWABLE ENERGY, LLC, ) Honorable Margaret Abn Brepne nape a
ONEIDA SEVEN GENERATIONS ) Judge Presiding \ =m oY 2
CORPORATION and THE ONEIDA TRIBE ) LE. can a
OF INDIANS OF WISCONSIN, ) ao
}
Defendants-Appellees. )
NOTICE OF APPEAL
PLEASE TAKE NOTICE that Plaintiffs-Appellants, ACF LEASING, LLC, ACF
SERVICES, LLC and GENERATION CLEAN FUELS, LLC, by and through their
attorneys, SANCHEZ DANIELS & HOFFMAN LLP, hereby appeal to the Appellate Court of
Ilinois, First Judicial District, from the following orders entered in this matter in the Circuit
Court of Cook County, HHnois, County Department, Law Division: the Order of October 8,
2014, dismissing with prejudice their Complaint against Defendants, Oneida Seven Generations
Corporation and The Oneida Tribe of Indians of Wisconsin for lack of subject matter jurisdiction
and the Order of October 27, 2014 granting Defendants, Oneida Seven Generations Corporation
and The Oneida Tribe of Indians of Wisconsin's Motion for IIlinois Supreme Court Rule 304(a)
Finding and finding no just reason for delaying appeal from the October &, 2014 Order.
A6
By this appeal, Plaintiffs-Appellants pray the Appellate Court to reverse the Order of
October 8, 2014 and remand this cause with directions to reinstate all counts of the Complaint
for trial on the merits to all claims, or for such other and further relief as the Appellate Court may
deem proper.
Respectfully submitted,
ny: Meath O OW
Gerald M. Dombrowski
Heather D. Erickson
SANCHEZ DANIELS & HOFFMAN LLP
333 West Wacker Drive, Suite 500
Chicago, Illinois 60606
(312) 641-1555
Attorneys Jor Plaintiffs-Appellants
ACF LEASING, LLC, ACF SERVICES, LLC,
& GENERATION CLEAN FUELS, LLC
bo
A7
CERTIFICATE OF SERVICE
Under penalties as provided by law pursuant to 735 ILCS 5/1-109, the undersigned
certifies that this Notice of Appeal was served on the attorneys listed on the attached service list
by mailing a copy thereof and depositing same in the U.S. Mail with proper postage prepaid at
333 West Wacker Drive, Suite 500, Chicago, Illinois at or before 5:00 p.m. on November 7,
2014, /
ILD Puy eC
ll
April D. Burre —
Signed and Certified:
1 UAT ALUN FOR YSDMIE ST HAPPEALINOTICEANDA doux
AS
SERVICE LIST
ACF Leasing, LLC, et al. vy. Green Bay Renewable Energy, LLC, et al.
Our File #: SD-80519
Trial Court #: 14 L 2768
Attorneys for Oneida Seven Generations Corp.
& The Oneida Tribe of Indians of Wisconsin
Mr. James B. Vogts
Mr. Thomas J. Verticchio
Swanson Martin & Bell
330 North Wabash - Suite 3300
Chicago, [linois 60611
Tel: (312) 321-9100
Fax: (312) 321-0990
Email: jvogts@smbtrials.com
tverticchio@smbtrials.com
Mr. Thomas M. Pyper
Ms, Cynthia L. Buchko
Whyte Hirschboeck Dudek
P.O. Box 1379
33 East Main Street - Suite 300
Madison, Wisconsin 53701-1379
Tel: (608) 255-4440
Fax: (608) 258-7138
Email: tpyperf@whdlaw.com
cbuchko/@whdlaw.com
Attorneys for Green Bay Renewable Energy, LLC
Mr. Guy R. Temple
Reinhart Boerner Van Deuren S.C.
1000 North Water Street - Suite 1700
Milwaukee, Wisconsin 53202
Tel: (414) 298-1000
Fax: (414) 298-8097
Email: gtemple@reinhartlaw.com
Mr. Bryan K. Nowicki
Reinhart Boerner Van Deuren S.C.
22 East Miffiin Street
Madison, Wisconsin 53703
22 East Mifflin Street, Suite 606
Madison, Wisconsin 53703
Tel: (608) 229-2200
Dir; (608) 229-2218
Fax: (608) 229-2100
Email: bnowicki@reinhartlaw.com
Ag
No. 14-3443
IN THE APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
ACF LEASING, LLC, ACF SERVICES, LLC,
and GENERATION CLEAN FUELS, LLC, Appeal from the Circuit Court of
Cook County, Illinois
Plaintiffs-Appellants, County Department, Law Division
vs. Circuit Court No. 14 L 2768
GREEN BAY RENEWABLE ENERGY, LLC,
ONEIDA SEVEN GENERATIONS
CORPORATION and THE ONEIDA TRIBE
OF INDIANS OF WISCONSIN,
Honorable Margaret Ann Brennan,
)
)
)
)
)
)
)
)
y Judge Presiding
)
)
)
)
Defendants-Appellees.
TABLE OF CONTENTS OF RECORD OF APPEAL
Volume I Page
Civil Action Cover Sheet (3/6/14) CO0002
Complaint (3/6/14) C00003-19
Plaintiff's Exhibit A - Master Lease Agreement C00020-44
Plaintiff's Exhibit B - Operation and Maintenance Agreement C00045-63
Notice of Calendar Call C00064
Proof of Service — Summons and Complaint ~ The Oneida Tribe C00065
of Indians of Wisconsin (4/1/14)
Proof of Service — Summons and Complaint — Oncida Seven C00066
Generations Corp. (4/1/14)
Proof of Service - Summons and Complaint — Green Bay Renewable C00067
Energy, LLC (4/1/14)
A10
Volume I Page
Appearance — Defendant, The Oneida Tribe of Indians C00068
of Wisconsin and Oneida Seven Generations Corporation (4/2/14)
Motion for Extension of Time of Defendants, The Oneida Tribe of CQ0069-71
Indians of Wisconsin and Oneida Seven Generations Corp. (4/2/14)
Order: Granting Defendants’ Motion for Extension of Time and C00072
Rescheduling for Initial Status on May 9, 2014 (4/2/14)
Appearance — Defendant, Green Bay Renewable Energy, LLC (4/4/14) — C00073
Certificate of Service — Defendant, Green Bay Renewable CQ0074-75
Energy, LLC (4/4/14)
Defendant, Green Bay Renewable Energy. LLC’s, Agreed Motion for C00076-77
Extension of Time to Answer (4/4/14)
Defendant, Green Bay Renewable Energy, LLC’s, C00078-79
Motion to Dismiss (5/2/14)
Defendant, Green Bay Renewable Energy, LLC's C00080-9 1
Memorandum of Law in Support of their Motion to Dismiss (5/2/14)
Certificate of Service — Defendant, Green Bay Renewable Energy, LLC C00092
(5/2/14)
Notice of Filing: The Oneida Tribe of Indians of Wisconsin and C00093-95
Oneida Seven Generations Corp.’s Motion to Dismiss for Lack of Subject
Matter Jurisdiction; The Oneida Tribe of Indians of Wisconsin and Oneida
Seven Generations Corp.'s Motion to Dismiss for Lack of Personal
Jurisdiction; The Oneida Tribe of Indians of Wisconsin and Oneida Seven
Generations Corp.’s Brief in Support of Motion to Dismiss,
Affidavit of Gene Keluche in Support of Motion to Dismiss, and Affidavit
of Patricia Ninham Hoeft in Support of Motion to Dismiss (5/5/14)
Motion to Dismiss for Lack of Personal Jurisdiction of Defendants, C00096-1061
The Oneida Tribe of Indians of Wisconsin and Oneida Seven
Generations Corp. (5/5/14)
Brief in Support of Motion to Dismiss for Lack of Subject Matter COOLOLA-116
Jurisdiction of Defendants, The Oneida Tribe of Indians of Wisconsin
and Oneida Seven Generations Corp. (5/5/14)
Ait
Volume I
Motion to Dismiss for Lack of Subject Matter Jurisdiction of
Defendants, The Oneida Tribe of Indians of Wisconsin and Oneida
Seven Generations Corp. (5/5/14)
Motion to Dismiss for Lack of Subject Matter Jurisdiction of
Defendants, The Oneida Tribe of Indians of Wisconsin and Oneida
Seven Generations Corp. (5/5/14)
Affidavit of Patricia Ninham Hoeft in Support of Motion to
Dismiss (4/30/14)
Exhibit | — Constitution and By-Laws of the Oneida
Tribe of Indians of Wisconsin
Exhibit 2 — Resolution # 12-4-96-B Grant of Corporate
Charter to Oneida Seven Generations Corp.
Exhibit 3 — Corporate Charter of Oneida Seven
Generations Corp.
Exhibit 4 —- By-Laws of Oneida Seven Generations Corp.
Exhibit 5 ~ Chapter 14 — Sovereign Immunity
Affidavit of Gene Keluche in Support of Motion to Dismiss
Appearance ~ Defendant, Green Bay Renewable Energy, LLC (5/8/14)
Appearance — Defendant, Green Bay Renewable Energy, LLC (5/8/14)
Notice of Motion: Defendant, The Oneida Tribe of Indians of
Wisconsin's Motion for Substitution of Judge (5/6/14)
Motion for Substitution of Judge of Defendant, The Oneida
Tribe of Indians of Wisconsin — (5/6/14)
Appearance - Defendant, Green Bay Renewable Energy, LLC (5/8/14)
Appearance — Defendant, Green Bay Renewable Energy, LLC (5/8/14)
Order: The Oneida Tribe of Indians of Wisconsin’s Motion
for Substitution of Judge is Granted (5/9/14)
Notice of Calendar Call
Ai2
Page
COOLT7-120
C00121-124
C00125-133
C00134-141
C00142
C00143-153
C00154-160
COOL61-163
C001 64-166
C001 67
CO00168
C00169
COO} 70-171
C001 72
C00173
C001 74
C00175
Volume I
Notice of Calendar Call
Notice of Calendar Call
Order: This Cause is Reassigned to Judge Margaret Brennan (6/5/14)
Appearance — Oneida Seven Generations Corp.;
The Oneida Tribe of Indians of Wisconsin (6/24/14)
Appearance — Oneida Seven Generations Corp.;
The Oneida Tribe of Indians of Wisconsin (6/24/14)
Correspondence ~ Enclosing Notices of Appearance of
Thomas M. Pyper and Cynthia Buchko (6/17/14)
Order: Briefing Schedule regarding Motion to Dismiss for Lack
of Personal Jurisdiction
Proof of Service — Responses to Plaintiffs First Requests to
Admit of Defendants, Oneida Seven Generations Corp.
and The Oneida Tribe of Indians of Wisconsin (7/3/14)
Certificate of Service — Responses to Plaintiff's First Requests to
Admit of Defendants, Green Bay Renewable Energy, LLC (7/3/14)
Order: Briefing Schedule Order Setting Clerk's Status Call
on 8/26/14 (7/7/14)
Notice of Filing: Brief in Support of Motion to Dismiss for Lack
of Personal Jurisdiction from Defendants, The Oneida Tribe of
Indians of Wisconsin and Oneida Seven Generations Corp. (7/11/14)
Brief in Support of Motion to Dismiss for Lack of Personal Jurisdiction
of Defendants, The Oneida Tribe of Indians of Wisconsin and
Oneida Seven Generations Corp. (7/11/14)
Notice of Filing: Plaintiff's Response to Green Bay Renewable
Energy, LLC’s Motion to Dismiss (7/31/14)
Plaintiff's Response to Green Bay Renewable Energy, LLC’s
Motion to Dismiss (7/31/14)
Ai3
Page
C00176
C00177
COO178
C00179
C00180
CO0181
C001 82
C00183
CO01384
C00185
C001 86-88
C001 89-198
C001 99-200
CO0201-211
Volume |
Complaint at Law (3/6/14)
Plaintiff's Exhibit A — Master Lease Agreement
Volume 2
Plaintiff's Exhibit A — Master Lease Agreement
Plaintiff's Exhibit B — Operation and Maintenance Agreement
Notice of Filing: Plaintiffs Response in Opposition to Oneida Seven
Generations Corp. and The Oneida Tribe of Indians of Wisconsin’s
Motion to Dismiss for Lack of Subject Matter Jurisdiction
Notice of Filing: Plaintiff's Supplemental Brief in Support of their
Responses in Opposition to Defendant OSGC and the Tribe's
Motions to Dismiss for Lack of Subject Matter Jurisdiction
Plaintiff's Supplemental Brief in Support of their
Responses in Opposition to Defendant OSGC and the Tribe’s
Motions to Dismiss for Lack of Subject Matter Jurisdiction
Case Law: Solargenix Energy, LLC v. Acciona, S.A., et al.
2014 Tl. App. (1°) 12403 (Aug. 1, 2014)
Order: Granting Plaintiffs Motion to Supplement Response Brief.
amending briefing schedule, and continuing for Clerk Status
Date on 9/4/14 (8/14/14)
Certificate of Service: Defendant Green Bay Renewable Energy, LLC’s
Reply Brief in Support of Its Motion to Dismiss Counts I, HI & V of
Plaintiffs Complaint (8/21/14)
Green Bay Renewable Energy, LLC's Reply in Support of Its Motion
to Dismiss Counts I, HI] & V of Plaintiffs Complaint (8/21/14)
Notice of Filing: The Oneida Tribe of Indians of Wisconsin and
Oneida Seven Generation Corp.’s Reply Brief in Support of Motion
To Dismiss for Lack of Personal Jurisdiction (8/28/14)
The Oneida Tribe of Indians of Wisconsin and Oneida Seven
Generation Corp.'s Reply Brief in Support of Motion to
Dismiss for Lack of Personal Jurisdiction (8/28/14)
A1i4
Page
C00212-229
C00230-249
Page
C00252-257
C00258-277
C00278-279
C00280-28 1
C00282-288
C00289-301
C00302
C00303
C00304-310
C0031!
CQ03 12-325
Volume 2
Notice of Filing: The Oneida Tribe of Indians of Wisconsin and
Oneida Seven Generations Corp.'s Reply Brief in Support of
Motion to Dismiss for Lack of Subject Matter Jurisdiction (8/28/14)
The Oneida Tribe of Indians of Wisconsin and Oneida Seven
Generations Corp.'s Reply Brief in Support of Motion to Dismiss
for Lack of Subject Matter Jurisdiction (8/28/14)
Notice of Filing: (1) Affidavit of Bruce King; (2) Affidavit of Joseph
QO. Kavan; and (3) Affidavit of Kevin Cornelius
Exhibit | Affidavit of Bruce King
Exhibit A Financing Package
Exhibit B Correspondence of 8/14/13
Exhibit 2 Affidavit of Joseph O. Kavan
Exhibit A Resume Summary
Exhibit 3 Affidavit of Kevin Cornelius
Exhibit A Correspondence of 4/26/13
Order: Clerk Status setting hearing regarding three Motions to Dismiss
on 10/8/14 (9/4/14)
Order: Granting Defendants, The Oneida Tribe of Indians of Wisconsin
and Oneida Seven Generation Corp.’s Motion to Dismiss for Lack of
Subject Matter Jurisdiction; and dismissing The Oneida Tribe of Indians
Page
C00326
C00327-339
C00340-34]
C00342-347
C00348-350
C00351-352
C00353-357
C00358
C00359-00363
C00364-366
C00367
C00368
of Wisconsin and Oneida Seven Generations Corp. as Defendants (10/8/14)
Order: Denying Count | of Green Bay Renewable Energy, LLC's
Motion to Dismiss, Defendants to answer by! 2/3/14; Granting Counts
Hl and V, Plaintiff to file amended counts by 11/5/14: cause set for
Status on 12/10/14 (10/8/14)
Notice of Filing: Defendants’ Motion for IHinois Supreme Court
Rule 304(a) Finding
Defendants’ Motion for Hlinois Supreme Court
Rule 304(a)} Finding
Exhibit A Court Order of 10/8/14
Ats&
C00369
C00370
C0037 1-373
C00373A
Volume 2
Certificate of Service: Defendants’ Motion for Ilinois Supreme Court
Rule 304(a) Finding
Order: Defendants’ 304(a) Motions and Status — 11/15/14 date for
Plaintiffs to replead their Complaint is stricken; Defendant, Green Bay
Renewable Energy, LLC’s date to respond to Plaintiffs’ amended
pleading is stricken; 12/10/14 Status remains set for 12/10/14 at
9:30 a.m. in Room 2307 (10/27/14)
Order: pursuant to Illinois Supreme Court Rule 304(a), finding no just
reason for delaying appeal from its October 8, 2014 Order granting
Defendants, Oneida Seven Generations Corp. and The Oneida Tribe of
Indians of Wisconsin’s Motion to Dismiss for Lack of Subject Matter
and certifying the order for immediate appeal (10/27/14)
Notice of Appeal of Plaintiffs-Appellants, ACF Leasing, LLC,
ACF Services, LLC and Generation Clean Fuels, LLC (11/7/14)
Request for Preparation of Record on Appeal from Plaintiff-Appellants,
ACF Leasing, LLC, ACF Services, LLC and Generation Clean
Fuels, LLC (11/21/14)
Certificate of Service: Request for Preparation of Record on Appeal
from Plaintiff-Appellants, ACF Leasing, LLC, ACF Services, LLC
and Generation Clean Fuels, LLC (11/21/14)
Volume 3
Stipulation of Report of Proceedings pursuant to Supreme Court
Rule 323(b) (12/17/14)
Report of Proceedings (10/8/14)
Supplemental Record
Volume |}
Order: Plaintiffs/Appellants’ Motion to Prepare the Supplemental
Record on Appeal and Extension of Time to File the Record on
Appeal is Granted (1/28/15)
Certificate of Service: Plaintiffs/Appellants’ Motion to Prepare the
Supplemental Record on Appeal and Extension of Time to File the
Record on Appeal is Granted (2/4/15)
Ai6
Page
C00374
C00375
C00376-377
C00378-381
C0003 82
C003 83-384
Page
00002-3
00004-28
Page
C2
Supplemental Record
Volume |
Plaintiffs’ Response in Opposition to the Motion to Dismiss for
Lack of Subject Matter Jurisdiction (7/31/14)
Exhibit | - Complaint at Law (3/6/14)
Exhibit A - Master Lease Agreement
Exhibit B - Operation and Maintenance Agreement
Exhibit 2 - Affidavit of Michael Galich
Exhibit A - Joint Venture Agreement
Exhibit B - Correspondence of 8/14/13
Exhibit 3 - The Oneida Tribe of Indians of Wisconsin's Response
to Plaintiffs’ First Request to Admit
Exhibit 4 - Oneida Seven Generations Corp.'s Response to
Plaintiffs’ First Request to Admit
Exhibit 5 - Affidavit of Eric R. Decator
Exhibit A - Joint Venture Agreement
Exhibit B - Correspondence of 10/26/12
Exhibit C - Correspondence of 05/03/13
Exhibit D - Bruce King’s PowerPoint Presentation Slides
Exhibit E - Correspondence of 08/14/13
Exhibit 6 - Deposition of Patricia Ninham Hoeft (7/17/14)
Supplemental Record
Volume 2
Exhibit 6 ~ Deposition of Patricia Ninham Hoeft (7/17/14)
Exhibit 7 ~ Deposition of Gene A. Keluche (7/17/14)
Ai7
Page
C5-20
C154-161
C162-190
CI9L-198
C199-200
C201-208
C209-211
C212-249
De os
Page
C252
C253-280
Supplemental Record
Volume 2
Exhibit 8 - Response Brief of Defendant-Respondent ~—
John Kroner y. Oneida Seven Generations Corporation (2/14/11)
Lack of Personal Jurisdiction (7/31/14)
Exhibit | - Complaint at Law (3/6/14)
Exhibit A - Master Lease Agreement
Exhibit B - Operation and Maintenance Agreement
Exhibit 2 - Affidavit of Michael Galich
Exhibit A - Joint Venture Agreement
Exhibit B - Correspondence of 8/14/13
Exhibit 3 - The Oneida Tribe of Indians of Wisconsin's
Response to Plaintiffs” First Request to Admit
Exhibit 4 - Oneida Seven Generations Corp.’s Response to
Plaintiffs’ First Request to Admit
Exhibit 5 - Affidavit of Eric R. Decator
Exhibit A - Jomt Venture Agreement
Exhibit B - Correspondence of 10/26/12
Exhibit C - Email of 5/3/13
Supplemental Record
Volume 3
Exhibit D ~ Bruce King PowerPoint Presentative Slides
Exhibit E - Correspondence of 8/14/13
Exhibit 6 - Deposition of Patricia Ninham Hoeft
Exhibit 7 - Deposition of Gene A. Keluche
At8
Page
C28 1-306
C307-32 1
C340-365
7366-385
C386-392
C393-42]
C422-424
C425-439
C440-454
C455-462
C463-489
C490-497
C498-499
C513-550
CS551-578
Supplemental Record
Volume 3 Page
Exhibit 8 - Response Brief of Defendant-Respondent — C579-604
John Kroner v. Oneida Seven Generations Corporation (2/14/11)
A1S3
ONEIDA SEVEN GENERATIONS CORPORATION and.... 2013 WL 2731350...
2013 WL 2731350 (Wis.App. III Dist.) (Appellate Brief)
Court of Appeals of Wisconsin, District II
ONEIDA SEVEN GENERATIONS CORPORATION and Green Bay Renewable Energy, LLC,
Plaintiffs-Appellants,
¥
CITY OF GREEN BAY, Defendant-Respondent.
No. 2013AP000591.
May 28, 2013.
Appeal from a Final Judgment of the Circuit Court of Brown County, the Honorable Marc A. Hammer Presiding,
Circuit Court Case No. 2012CV002263
Brief of Plaintiffs-Appellants
Godfrey & Kahn, S.C., One East Main Street, Suite 500, Post Office Box 2719, Madison, WI §3701-2719, Phone:
608-257-3911, Fax: 608-257-0609.
Erie J. Wilson. # 1047241, Matthew T. Kemp, # 1080009,
Attorneys for Oneida Seven Generations Corporation and Green Bay Renewable Energy, LLC,
TABLE OF CONTENTS
TABLE OF AUTHORITIES ccc cccseeecnsenieserieeereererreriassnmesieersentenieecnistesumsrsnuerineccinartsrruccenssnuereerersemersesy iV
ISSUES PRESENTED FOR REVIEW occ ses irterenteniitnisncriecnicsintnscunimecniecsinsenrecrceenuteemirsnereremssnsers |
STATEMENT ON ORAL ARGUMENT AND PUBLICATION oocccccccesssseeseennrersssnimnerssareccaninrsienieccsnnersranee 3
STATEMENT OF THE CASE cicccccccccsusecnstessniessenecnerrurcsvessiermuerseissimssrasasssssnsssasseerouicrericen certs rection 4
Nature of the Case cccccccccccccesssncssssesssnseeseccess neces intssruenseeessevsesseveccsstussrmterenessiceeessceersaversusrsssececcvaecrimeanvarsarmrsenninegeersaantss 4
The Proposed Facility cocci ectceerc cree eerste ies iineinscieesnccscicnnrameeramsewessnarteseinennenseraneesteraersicrsnengserentaes 5
OSGC Submits a Conditional Use Permit Application that Discusses Potential Emissions at Length wo... 6
The Plan Commission Recommends Approval of the CUP after Detailed Consideration of the Facility’s 9
Operations, Including Potential EMisSiOns oo ccc eceecseceseeseeeccesssncecceerecnenreseesuiisarsniteanineerneececnmmestestinetanrreeenness
Fallowing Extensive Deliberation About the Proposed Facility, the Council Approves the CUP uc uccneees 12
As Contemplated and Required by the CUP, OSGC Engages in an Extensive Environmental Permitting 15
Process with State and Federal AQencies ccc eee eece ness eeermeeesenneesesccrenatisoneenarisnennssrersancnrenennsvacteenserspeesceneseectecens
The City Issues a Building Permit, and OSGC Commences Construction occ eieenreereestecerireecetopanieesey 19
*; The Opposition Groups Renew Their Objections, This Time Before the City COUNCH oon 19
The Plan Commission Unanimously Determines that OSGC Did Not Misrepresent the Project. oc 2)
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The City Council Ignores the Plan Commission's Findings and Revokes the Permit
The Ruling Below
STANDARD OF REVIEW
ARGUMENT
i... THE COUNCIL HAD NO AUTHORITY TO RESCIND THE CONDITIONAL USE PERMIT. ou...
A... The Council Illegally Rescinded the CUP Based on the Implied, Unwritten Condition that the Facility
Would Have Zero EMISSIONS. cicccccccccecccsscsssecsnssesessssessssessessesuesvsatsvsscsessssucevavsiseesessceeeessnsssssseersarsetavsetiesitausavensteeveseeieeuasssiees
B.... By Virtue of the Building Permit Issued by the City, OSGC Enjoyed a Vested Right to Develop the
Facility, Which the City Had No Power to Take AWay. iiccccccceccecesseareceseesntsnsesseesensesesstersnissisessessianeersisanarereseenients
Ih... THE COMMON COUNCIL ACTED ARBITRARILY AND WITHOUT SUBSTANTIAL
EVIDENCE. ciccccccccccccccsseteseceseeseeeeesnesenssnecaecressrecnnecureersanesensnsenvesensevecanievirsrcaivcrarserstsnvsessaetienesecaavesnsaneerecsiseageisnensseccanieererenreneenees at
A. OSGC Clearly Informed the City that the Facility Would Produce Emissions That Would Be Subject to
DNR Approval. ccc ececciecsscecsssitsnersenursunesrsnitesnmessaneeraseecracesseteusscerarstuamtanencanecieniesrnseevniranrecttennescnensvasitsarsegysane
*ii B. The City Arbitrarily lenored the Unanimous Finding of the Plan Commission that There Was No
MUSTEPPESENTALION. ccc ceceessnecesseteeerieeseneeveunessecusrueteueessimesnersineesaneesiiestieeiaceateiermaririsinennnaneseraicrnrirssecennenrsntss
CONCLUSION
CERTIFICATIONS occ cccecceses ecsnresneesseescinessiesriesnreeeeriaceersnenes ttsentearisanecsusennsagerseciacnsaesnteeragsaegseseeerssaeittresiavereesteristianisnieeteansees
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*ii TABLE OF AUTHORITIES
Cases
irkinson v. Piper, 18) Wis. S19, 19S NW, S44 (1923)
Bettendorf vy. St Croix County Ba. of Adjustineat, 224 Wis, 2d 33,
735, 591 N.W.2d 916 ECL App. 1999) cence
Cornwell Personnel Assocs. Lid. v. LIRC, 175 Wis. 2d 537,
499 NW 2d 705 (Ct. App. 1993)
Gehinv Wis. Group Ins. Bd. 2005 WI 16,278 Wis, 2d TET.
BOD NOW Dd S72 occccccccees ees veresentinscrerserescetetietessecnaesterecnsenoneeees ;
Klefisch » Wisconsin Telephone Cu. 181 Wis, S19, 19S NOW,
S44 (1923)
Vielyen vy. Waukesha County Ba. of Supervisors, 178 Wis. 2d
498, S04 N.W.2d 621 (Cte App. 1993) coccinea
Ouman v. Town of Primrose, 2011) WE 18. 332 Wis. 2d 3, 796
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NW cece cee eer cess ceesenteareesessaiesssessuneseeesuteaeesiettiuereentese
Sills vo Walworth Caty. Land Mgmt. Commi. 2002 WI App 42
ETE, 254 Wis. 2d 538, GER NW 2d B78 cee ectesteneeeneess
*iv State ex rel, Skelly Oil Co. v. Common Council, 38 Wis, 2d 34
698, 207 N.W.2d 585 (1973)
Pan Ermen v. DHSS, 84 Wis. 2d 87,267 NW 2d 17 (1978) oo. 43
Von Ary vo Schwarz 185 Wis. 2d 645. S17 N.W.2d S40 (CL. 43,57
ADP LQG) cece ees eeceeeseeseesneeeieersseeesacsrecaessrisensseeesresserauicenseeseeetenens
Statutes
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WS. Stat. SLED caccccssessevssssesessuesssesessssseseseusnssesnsstuevessiesteuesssaneseee 18
Wis. Stat. $ § G8.O8-G8 Tb cee ecc cesses ness ieesentestasesiessneenes 27
Other Authorities
40 CLFLR, Parts 1500-1508 once cece eet eeriesnieerenenetiss 18
Green Bay Municipal Code § 13-205 oon 7
Green Bay Municipal Code § 15. 05(8)@) occ 4}
Wis. Admin. Code § NR ESOOV OD) ccc tesetesstesnssmacees 18
*v ISSUES PRESENTED FOR REVIEW
In March 2011, the Green Bay City Council approved a conditional use permit (‘CUP") for a waste-to-energy facility in
development by Oneida Seven Generations Corporation (OSGC™). The approval was expressly conditioned on the facility
complying with all federal and state environmental standards, including standards for air and water quality. Accordingly,
OSGC embarked on an extensive, and very public, environmental permitting process with state and federal agencies. A small
but vocal group of opponents claimed the facility would harm local air quality and urged the agencies to disapprove the
facility. The agencies rejected the arguments of the opponents and gave OSGC a green light to build the facility, which
OSGC began to do.
Having failed to persuade the state and federal agencies, the opponents of the project then went back to the City, claiming
that OSGC had misrepresented the nature of the Facility duringthe *1 CUP application process by saying there would be no
air emissions. In fact, OSGC had told the City many times in writing and orally that there would be emissions, and that those
emissions would be subject to state and federal environmental standards. Nonetheless, the City directed the Plan Commission
to hold a public hearing on the alleged misrepresentations. After considering hundreds of pages of written submissions and
hours of testimony from both supporters and opponents of the project, the Plan Commission unanimously found that there
had been no misrepresentation, At the next City Council meeting, however, the Council, without conducting any inquiry of
its own, voted to rescind the CUP on the basis of the alleged misrepresentations.
On these facts, two issues are presented on appeal:
Issue No. 1: May a city council rescind a conditional use permit based on implied conditions that were not written in
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*2 the permit and when the city has already issued building permits for the facility at issue?
Phe circuit court held that it could.
Issue No. 2: May a city council rescind a conditional use permit for alleged misrepresentations about the
environmental impacts of the facility at issue, when the permittee disclosed to the City these impacts; the council
deferred the environmental vetting process to expert state and federal agencies, who approved the project; and the
city’s own plan commission - the only body to engage in factfinding regarding the matter - unanimously found that
there was no misrepresentation?
The circuit court held that it could.
STATEMENT ON ORAL ARGUMENT AND PUBLICATION
Plaintiff-Appellant requests oral argument. The record is sufficiently extensive that the Court would likely benefit from a full
discussion of the issues in the presence of counsel possessing a command of the record.
*3 As to publication, Plaintiff-Appellant believes that this case carries important consequences not only for the parties - one
of whom has been publicly accused of misrepresentation, and the other of which is a large municipality - but also for
economic development activity throughout the State of Wisconsin, which depends on predictability when embarking on
large-scale economic and environmental investments.
Accordingly, publication would be appropriate.
STATEMENT OF THE CASE
Nature of the Case
This is a certiorari action by OSGC, seeking reversal of the City’s decision to revoke the CUP. The revocation occurred more
than 18 months after the City originally issued the CUP, more than a year after the City issued a building permit, and nearly a
year after state and federal agencies issued environmental approvals and permits for the facility.
*4 The Proposed Facility
OSGC wants to bring clean energy to the Green Bay community by constructing a facility that turns garbage into electricity.
The key to this conversion is a process known as “pyrolysis,” in which the waste is gasified by heating it at very high
temperatures in an enclosed, oxygen-starved chamber. R. 25 at 231-32, 374-75, The process produces a gaseous fuel (similar
to natural gas) that is then used to run electricity-producing generators - essentially large internal combustion engines. /d. The
pyrolysis gasification process itself does not produce air emissions because the process occurs in an enclosed chamber. While
the generators (like all combustion engines) do produce emissions, they are at levels that the state Department of Natural
Resources (‘DNR") determined would be acceptable under state and federal environmental laws. R. 25 at 238, 290. Thus, the
facility will reduce the amount of waste going to locallandfills *8 while decreasing the community's reliance on electricity
derived from fossil fuels. R. 25 at 387, 392.
In late 2010, OSGC representatives met with staff from the City’s Economic Development and Planning Departments
regarding their plan. R. 28 at 1, R. 26 at 728. Together, OSGC and City staff evaluated a number of possible sites within the
City for the facility. R. 26 at 725. Ultimately, OSGC selected a site on Hurlbut Street surrounded by vacant land and heavy
industrial operations. R. 25 at 156.
OSGC Submits a Conditional Use Permit Application that Discusses Potential Emissions at Length.
City officials at all levels were provided with extensive information about the proposed project, including information about
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potential air emissions. On February 4, 2011, OSGC submitted to the City a written application for a conditional use permit.
R. 25 at 2-152. A conditional use permit is, in essence, a special zoning classification, which allows owners to useproperty *6
in a manner that does not fit into typical zoning classifications. See Green Bay Municipal Code § 13-205. The application
explained the nature of the project and contained extensive information about potential environmental impacts, especially air
emissions. /d For example, it noted that the Wisconsin Department of Natural Resources (‘DNR”) would need to issue an air
permit before construction could begin, and that “application and review of this permit will likely need to address air quality
impacts ... as well as emissions of hazardous air toxic compounds[.]"! R. 25 at 25. It also noted that the facility would need to
report actual air emissions to the DNR on an annual basis, and that DNR would maintain oversight and enforcement
responsibility over the facility’s operations. /d in a SQ-page section titled “Emissions,” OSGC provided the City withdetailed
*7 information about potential air emissions from similar technologies, including a lengthy report by a university engineering
department. R. 25 at 26-76. OSGC also provided preliminary drawings and artists’ renderings of the facility. R. 25 at 18-23.
City planning staff carefully reviewed all of the information and prepared a report to the Plan Commission regarding the
project. The report noted that OSGC had provided City staff with “considerable information ... detailing the gasification
process and its resulting impact.” R. 26 at 155. The report explained that OSGC would have to obtain an air permit and
operations permit from DNR, After observing that the facility would be in a “heavy industrial area separated from any
residential uses by Interstate 43,” the report concluded that the “proposed use is an appropriate land use for the subject site.”
R. 25 at 156; see also R. 25 at 248-57, The report recommendedapproval *8 of the CUP, subject to certain conditions,
including the condition that the facility comply with “[a]ll Federal and State regulations and standards related to the proposed
use including air and water quality.” fed,
The Plan Commission Recommends Approval of the CUP after Detailed Consideration of the Facility's Operations,
Including Potential Emissions.
On February 21, 2011, the Plan Commission discussed the project at its regularly scheduled meeting. R. 25 at 157-66; R, 26,
Audio CD 1. After City planning staff reviewed OSGC’'s application and the report that staff had prepared, representatives
from OSGC addressed the Commission, R. 25 at 160-65. They first presented a pre-recorded slideshow explaining how the
facility would work - starting with waste delivery by trucks, then shredding and sorting of the garbage, followed by the
pyrolysis gasification process, then the gas cleaning process, and finally the conversion of the gas to electricity through
gas-fired generators. R. at 160-161. As part ofthe *9 presentation, OSGC promised that the Facility would “meet or exceed”
federal standards for safety, emissions, and pollutants. R. 26, Audio CD | at 21:50. The slideshow further noted that ‘there
are no smokestacks such as those associated with coal-fired power plants.” Id. at 22:10 (emphasis added).
Plan Commission members then engaged OSGC in a lengthy question-and-answer session. R. 25 at 160-66. A number of the
Plan Commission's questions pertained to air emissions. OSGC explained how the gasification process itself takes place in an
“enclosed” system, in that no oxygen is allowed to enter the chamber. R. 25 at 161; R. 26, Audio CD 1, 20:45. One
commission member noted that OSGC's written materials had described emissions from similar technologies, and that those
emissions included certain chemicals. /d. at 43:45. In response, an engineer working for OSGC stated that there would be no
chemicals from OSGC’s facility because they would be *16 “scrubbed out”: a reference to the facility's “Venturi scrubbers”
that would clean the gas before it is piped to the generators. /¢. However, the contractor specifically noted that there would be
dioxin emissions. /d.: see also R. 25 at 164 (misspelling “dioxins” as “diosons")” The contractor then clarified that the
chemical emissions would be “acceptable” and “under EPA/DNR standards” - that is, there would be chemical emissions, but
because of pollution control devices such as the Venturi scrubber, none of the emissions would exceed the safety thresholds
designated by the environmental regulatory agencies. R. 26, Audio CD | at 47:20; R. 25 at 164.
*11 The Commission voted unanimously to recommend approval of the CUP, including the condition that the Facility
comply with all federal and state environmental regulations. R. 25 at 166.
Following Extensive Deliberation About the Proposed Facility, the Council Approves the CUP.
On March 1, 2011. the Common Council met and considered the Plan Commission’s recommendation. R. 25 at 171-72, see
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generally R. 26, Audio CD |, Through deliberation that lasted well over an hour, the Council thoroughly vetted the proposed
Facility in an open session. OSGC presented the same pre-recorded slideshow that explained that the Facility would “meet or
exceed” federal standards for safety, emissions, and pollutants. R. 26, Video | at 1:11:00. In follow-up remarks, OSGC stated
that “[alny emissions that come off the generator...will be subject to WDNR and EPA approval. So we just want to make that
clear for the record.” /eé at 1:14:53.
*12 Part of the OSGC presentation was a slide titled “Emissions.” /e, at 1:18:10. On that slide, a bullet point explained that
“ft]here will be no smokestacks such as those associated with coal-fired power plants.” /d. at 1:18:10. In explaining that slide,
an OSGC representative said, “There are no smokestacks. For those of us in Green Bay, we know what that means.” /d. In
other words, he explained that there would be no stacks on the facility like the enormous structures familiar to Green Bay
residents on the Pulliam power plant and local paper mills.
During the question and answer session, one alderperson referenced OSGC’s remark about “no smokestacks” and clarified
that the facility would have generators that would produce exhaust: OSGC agreed with this observation. /d@ at 1:32:18. In
addition, one member of the public with professional experience in air emissions spoke extensively about his research
intopotential *13 emissions from the proposed Facility. /d at 1:46:00. He noted that emissions from gasification facilities are
generally more favorable than traditional combustion, and that emissions from this facility would likely be very smail in
comparison to the nearby Pulliam coal-fired power plant. /d. In short, it was clear that everyone present knew there would be
emissions from the Facility.
After the public comment period had concluded. the alderperson representing the district where the Facility would be located
(Ald. Dorff} spoke in favor of the project. Referencing the plethora of regulatory review required for the facility, he noted:
“{T]he environmental concerns that have been raised by my constituents have been addressed.” /ed. at 1:51:05. The chair of
the Council, Alderman Thomas DeWane, also gave his unconditional support, stating: “I think this is going to be a good
project. I also checked into it, They answered all of the myquestions. *14 I’m very positive that this is good for Green Bay.”
/d. at 1:52:00. Thereafter, all but one Council member voted to approve the CUP. R. 25 at 172. As recommended by the Plan
Commission, the CUP was conditioned on the facility complying with all federal and state environmental standards. R. 25 at
198, There were no conditions that mentioned emissions or stacks.
As Contemplated and Required by the CUP, OSGC Engages in an Extensive Environmental Permitting Process with
State and Federal Agencies.
After obtaining the CUP, OSGC embarked on an extensive environmental review and permitting process - exactly as the Plan
Commission and Common Council had anticipated when they adopted the condition that the OSGC facility must meet all
state and federal air and water quality requirements. As a result of this review, state and federal agencies with expertise on
environmental matters issued findings and permits allowing construction of the facility. R. 25 at 253, 328, 367. R. 26 at 618.
*15 Throughout this lenethy and very public review process, numerous groups and individuals opposed to the facility (as
well as project supporters) appeared at public meetings hosted by the regulators to speak against the requested environmental
approvals. R. 25 at 262-265, 284-285, 387-389, The project opponents submitted numerous comments to both DNR and the
LS. Department of Energy DOE”) detailing concerns with the facility’s alleged environmental impacts. R. 25 at 265-285,
387-388, 548-561. Both agencies thoughtfully considered these comments and responded to them in writing. /d. Many of the
opponents appeared to believe that the pyrolysis process was just another version of trash incineration that would emit
damaging levels of pollutants into the atmosphere. E.g., R. 25 at 266, 565. In fact, one of the more vocal opposition groups
called itself “Incinerator Free Brown County.” R. 26 at 763, 856. During the course of their review, however, both DNR and
DOEconfirmed *16 that the pyrolysis process did not involve any incineration. R. 266, 565-566.
After this public process, in September 2011, DNR issued permits and approvals under the state’s clean air and solid waste
laws. R. 25 at 286-327; R. 26 at 618-627.. The DNR published the results of its formal Environmental Analysis, in which it
concluded that approval of the facility was nof a “major action” and would not have significant environmental effects. R. 25
al 283. The DNR study included a lengthy analysis of a wide rangeof *17 potential environmental impacts, Including air
emissions. R. 25 at 231-260."
Nicest
EEG
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In November 2011, DOE published its final Environmental Assessment.’ R. 25 at 372-568. The assessment thoroughly
evaluated the environmental impact of the facility, and included 18 pages of analysis dedicated specifically to air emissions,
R. 25 at 422-440. Based on its review, DOE issued a Finding of No Significant Impact (referred to colloquially as “FONSP").
R. 25 at 367-371. DOE concluded that “the area’s air quality would remain in compliance with current standards.” R. 25 at
368. In fact, DOE determined that the facility would have a positiveimpact *18 on greenhouse gas emissions because of the
reduced traffic of waste to local landfills. /d.
The City Issues a Building Permit, and OSGC Commences Construction.
As the environmental permitting process was wrapping up, OSGC submitted detailed site plans and building plans to the
City, as required under the City’s zoning and building codes, On August 3, 2011, the City approved those plans and issued a
building permit. R. 25 at 200-206, 730-731. With the required approvals in hand, OSGC proceeded with preparatory
construction work.
The Opposition Groups Renew Their Objections, This Time Before the City Council.
Having failed to persuade DNR or DOE that the project would not meet environmental standards, the opposition groups
began to pressure the Common Council to reconsider the CUP. On April 10, 2012, numerous opponents of the project
attended a Common Council meeting, alleging that OSGC hadmisrepresented *19 the environmental impacts of the facility
when applying for the CUP. R. 25 at 209-210. In particular, the opposition groups alleged that OSGC had claimed the facility
would have no stacks and would produce no emissions. /e.
Responding to the outery from a vocal opposition, the Council voted to “hold a public hearing” regarding the CUP and to
“continue further investigation.” R. 25 at 210. Through correspondence from its counsel sent shortly thereafter to the City
Attorney, OSGC objected to the proceeding contemplated by the Council. R. 25 at 211-214. OSGC pointed out that it had
presented extensive information about potential emissions to the Plan Commission and the Council, and that DNR and DOE
had reviewed the potential emissions in detail - which is exactly what the CUP approved by the Council had specified should
happen. Je Despite the absence of any evidence - indeed, even any allegation - that the facility would be out of compliance
withthe *20 CUP, the City forged ahead with its “investigation.” Eventually, the City decided that the Plan Commission - the
body that had originally considered and recommended approval of the CUP - should hold a public hearing. R. 26 at 956.
The Plan Commission Unanimously Determines that OSGC Did Not Misrepresent the Project.
The City published a notice of the Plan Commission hearing, inviting citizens to submit written comments prior to the
hearing and to speak at the hearing. /a The purpose of the hearing, as described in the notice, was to “determine if the
information submitted and presented to the Plan Commission was adequate for it to make an informed decision whether or
not to advance the Seven Generation Conditional Use Permit (CUP) that was recommended.” /a.
Although OSGC objected to the proceeding, it nonetheless submitted written materials to the Plan Commission, R. 25 at
221-568. In those materials, OSGC outlined the extensiveinformation *21 that had been presented to Planning staff and the
Plan Commission and highlighted the numerous mentions of potential emissions from the Facility /d at 221-226. OSGC also
submitted the record of the detailed environmental review process conducted by DNR and DOE. /d The Director of DNR’s
Air Bureau wrote a letter emphasizing that “the Department believes that the proposed facility will meet all applicable state
and federal air quality requirements| }” R. 29 at 229-232. Many proponents and opponents of the project also submitted their
own materials. R. 26 at 571-712.
The Plan Commission meeting lasted several hours. R. 26 at 716. Numerous parties spoke at the hearing, including City
Planning Director Rob Strong, who reviewed the process by which the City had issued the CUP in 2011. R. 26 at 724-731,
889-894, Director Strong noted the extensive information that had been submitted with the CUP application and recalled
thatOSGC *22 and Planning staff had gone “back and forth quite frequently” even before the Plan Commission considered
the CUP, R. 26 at 726. Director Strong emphasized: “[Wle didn’t do anything different here. We followed the same process
we do for every other project that comes forward.” R. 26 at 890. With regard to the “stacks” issue specifically, Director
Strong noted that the City had not been misled, explaining:
Rjovt
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[I]t's not unusual to go through these things. Doors move on buildings, roof lines will change, but they still have to meet the
basic Code requirements that are in the City’s Code for building a building in this community, which includes zoning as well
as a building permit. So | just wanted you to understand that this process isn’t that much different than any other.
R. 26 at 892-893. The same member of the public with expertise in air emissions who had addressed the Council the previous
year also spoke at the Plan Commission hearing, stating:
{When I spoke to the City Council [in March 2011], | made it real clear that there are air emissions .... And what | tried to do
to my alderman and to theCity *23 Council was to make it real clear to them that there were stacks, that there were
emissions.
R. 26 at 798, 798.
After considering the written materials and oral presentations, the Plan Commission publicly discussed the matter.
Commissioner Bremer stated:
iWle were not deceived on that point [regarding emissions]. We knew that there was emission. We knew that there would be
vents. We did not know the exact placement or height of those vents, because it was very early in the process. And It’s been
my experience with the Plan Commission and with the many projects that are to the betterment of the community that,
indeed, there is a process that evolves over time in a back-and-forth conversation, and this has gone very much along those
lines.
| appreciate that | am not convincing anybody who feels to the contrary. I'm simply expressing my own thinking that, despite
new information that has occurred since we recommended this, we were not deceived on the front end. We did have adequate
information about what was known at the time, and the process that has moved forward has done so [ think in an appropriate
Way.
R. 26 at 895-897,
*24 Thereafter, the members of the Plan Commission unanimously concluded that OSGC had nor misrepresented the facility
and that the Commission had adequate information to approve the CUP. Specifically, the Commission approved the
following language as a report and recommendation to the Common Council:
Based on the information submitted and presented, the Plan Commission determines that the information provided to the Plan
Commission was not misrepresented and that it was adequate for the Commission to make an informed decision, and
recommends that the CUP stand as is. The Commission further determines that the information the Plan Commission
received was adequate, and based upon information then available, that the Plan Commission did understand that there were
emissions and venting as a part of the system, and therefore made sure that the Seven Generations Corporation would need to
meet the requirements of the EPA and DOE, as well as meeting the requirements of the municipal code through a normal
process of give or tak
fans
R. 26 at 955,
*25 The City Council Ignores the Plan Commission’s Findings and Revokes the Permit.
On October 16, 2012, the Common Council met for a regular!y-scheduled meeting. Numerous project opponents attended the
meeting and, against the express advice of the City Attorney, the Council opened the floor to public comment regarding the
CUP. R. 26 at 956: Video 2 (Part 1) at 46:00. The Council voted to reject the Report of the Plan Commission, and then it
voted to rescind the CUP. Both votes carried by a bare majority of seven-to-five. R. 26, Video 2 (Part 2) at 37:22, 38:53. The
Council did not explain the basis for its vote or the rationale that supported It.
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Because the Council itself failed to explain the basis for its decision, two weeks later the City Attorney sent a letter to OSGC
purporting to explain why the Council has rescinded the CUP. R. 26 at 950-951. The letter claimed that OSGC had made
“false statements and misrepresentations” to the City “relating to thepublic *26 safety and health aspect of the Project and the
Project's impact upon the City’s environment” and “regarding emissions, chemicals, and hazardous materials.” /d. The letter
never identified, however, any particular statement that was allegedly false, nor did it explain the basis { for the City’s
determination that any statements were false. /d. The letter closed by stating that “any further action at 1230 Hurlbut Street to
construct the solid waste facility will be prohibited by legal action, if necessary[.]” R. 951
Through its counsel, OSGC submitted a letter to the City requesting an administrative appeal of the Council's decision to
rescind the CUP pursuant to Wis. Stat. § § 68.08-68.1 1. R. 26 at 958-960. The City denied that request. R. 26 at 961-962.
The Ruling Below
OSGC initiated this litigation to restore the CUP and save development of the facility. Its complaint alleged that the City had
illegally rescinded the permit based on an implied.unwritten *27 condition: had deprived OSGC of its vested right to develop
the facility; had rescinded the permit without substantial evidence of misrepresentation; and had acted arbitrarily and
unreasonably. R. 2. OSGC also raised a number of procedural arguments but voluntarily dropped those arguments in order to
proceed to a quick resolution on the substantial issues relating to the City’s underlying authority to rescind the permit.
Afier briefing and oral argument, the circuit court ruled against OSGC on all claims. The circuit court did not believe that the
City had revoked the CUP based on an implied condition (zero emissions) that was not written in the CUP. R. 24 at 77. The
circuit court also ruled that the vested rights doctrine did not apply because in its view it was fundamentally a question of
damages, not a question of the Council's authority to rescind the CUP. /d. at 78. In addition, the circuit courtbelieved *28 that
OSGC had misrepresented the project by saying that there were “no emissions during the baking process,” id. at 89, and by
showing a “photograph” of the facility without stacks, fd. at 90. The circuit court disregarded the unanimous finding of the
Plan Commission, stating that “The Plan{] Commission ... had no authority to do anything” and “I think what happened in
this case is two organizations processing very similar pieces of information came to different conclusions.” /d at 80.
OSGC tmely filed this appeal.
STANDARD OF REVIEW
In certiorari actions, this Court reviews the circuit court’s conclusions de novo. Welsen » Waukesha County Bd. a
Supervisors, 178 Wis, 2d 498. STL, S04 N.W.2d 621 (CL App. 1993). In reviewing the underlying action taken by the City,
the Court affords a “presumption of correctness and validity to a municipality's decision” but still undertakes a
“meaningfulreview” *29 of the municipality's decision. Ouman v. Town of Primrose, 2011 WE 18, © 48, 51, 332 Wis. 2d 3.
796 NW Od 4b. However, this Court reviews “questions of law independently from the determinations rendered by the
municipality or the circuit court.” /d@ at § 54.
ARGUMENT
In an action for certiorari review, court must “test the validity of a decision rendered by a municipality|.}° Orman, 2011 WI
18. © 34. To do so, the Court inquires whether: (1) the City was within its jurisdiction; (2) the City proceeded on a correct
theory of law; (3) the City’s action was arbi itrary, oppressive, or unreasonable and represented its will and not its judgment:
and/or (4) the evidence was such that the City might reasonably make the order or determination in question, Ouman, 2011
18.8 35-36,
Violation of any one of these standards would be enough to reverse the City’s decision. The City has violated all four.
TheCouncil *30 acted outside of its jurisdiction and contrary to law by revoking the permit based on an unwritten, imp hed
condition, and by depriving OSGC af its vested right to develop the facility. In addition, there was no evidence - let alone
substantial evidence - that OSGC had misrepresented the project, and the Council's entire decisionmaking process
A28
ONEIDA SEVEN GENERATIONS CORPORATION and..., 2043 WL 2731350...
culminating in its vote to rescind the CUP was arbitrary and unreasonable. In short, the Council's decision was nothing more
than a knee-jerk reaction to vocal opposition groups rather than a reasoned exercise of legislative judgment.
The implications of the City’s action are concerning not only for OSGC's project, but for economic development in
municipalities around the state, Both developers and the general public depend on the certainty of established permitting
processes. Here, after a developer (OSGC) had gone through that extensive process, received valid permits, and started on
itsproject *31 in justifiable reliance on the approval it had obtained, the City pulled the rug out from under OSGC. Through a
knee-jerk reaction to the allegations of a vocal opposition, whose arguments about the facility’s environmental impacts had
long since been considered and rejected by expert state and federal agencies, the City subverted the thorough and rational
administrative process upon which developers like OSGC must rely when deciding when and where to invest their resources.
1]. THE COUNCIL HAD NO AUTHORITY TO RESCIND THE CONDITIONAL USE PERMIT.
A. The Council Hlegally Rescinded the CUP Based on the Implied, Unwritten Condition that the Facility Would Have
Zero Emissions,
Though the City has never fully explained its reason for rescinding the CUP, it appears that seven out of twelve Council
members believed (or claimed to believe) that the CUP was granted on the implicit condition that the proposed facilitywould
*32 have zero emissions. But by basing its rescission on an unwritten, implied condition, the Council violated a cardinal rule
of conditional use permits: material conditions placed on a permittee’s use of property mus! be spelled out in the permit itself.
See Bettendorf vy, St. Croix County Bd. of Adjustment, 224 Wis. 2d 735,59) N.W 2d 916 (Ct. App. 1999)
In Bettendorf, the municipality attempted to revoke a conditional use permit for a particular property based on the owner's
alleged illegal use of an adjacent property. /d. at 737-738. The permit did not include any condition relating to the use of the
adjacent property, but the municipality argued that such condition was “implied” /d at 741. The court disagreed, explaining
that “[a] conditional use permit allows a property owner to put property to a use which the ordinance expresslypermits *33
when certain conditions have been met.” /e/. (citing Srafe ex rel. Skelly Oil Co. v. Common Council, 58 Wis. 2d 695, 701. 207
N.W.2d 585 (1973)). The property owner had not violated any of the terms of the conditional use permit, and the court
refused to “read into the permit conditions the [municipality] discussed but chose not to incorporate.” id The court held that
the municipality had acted “outside its authority” in revoking the permit based on the implied condition. /d at 742.
Here, the rescission of the CUP apparently was based on the Council's perception that the facility was supposed to produce
zero emissions, and that this was a material condition of the approval. But the CUP says nothing about zero emissions. if
anything, the CUP’s condition requiring the facility to comply with air and water quality standards contemplates that there
would be emissions.
*34 Indeed, a condition requiring zero emissions in these circumstances would have been astonishing. This was a facility that
was designed to create electricity using gas-burning generators, which by their very nature must produce exhaust; that is why
OSGC told the City many times orally and in writing that there would be emissions and that the project would require an air
permit. The City’s obligation to spell out material permit conditions in writing becomes all the more critical when the
condition at issue is directly contrary to the applicant's own description of the project, and is as remarkable as a
zero-emission limit.
Under these circumstances, the Council’s revocation of the CUP is a more egregious violation of the Bettendorf principle
than Bertendorf itself. In Bettendorf, the city at least had theexcuse *35 that the permit holders were doing something illegal
on the adjacent property. /d/ at 737-38. Here, there has never been even an allegation that OSGC was acting, or planning to
act, in violation of any state or local law. To the contrary, OSGC did precisely what the City expected and required:
undertake the extensive environmental permitting process with DNR and DOE. No other condition relating to emissions was
spelled out in the CUP. Under Betendorf, the City cannot, eighteen months after the fact, pretend that there was such a
condition. Thus, the City’s revocation of the CUP was contrary to law and beyond its jurisdiction, and it must be reversed.”
A2g
[OCR skipped on page(s) 31-36]
[Read from a scan; the first 30 pages.]
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.